United States District Court, E.D. Michigan, Southern Division
& ORDER (1) ACCEPTING THE MAGISTRATE JUDGE'S
RECOMMENDATION DATED DECEMBER 4, 2017 (DKT. 16), (2)
OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DKT. 17), (3)
GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. 11), AND (4)
DISMISSING PLAINTIFF'S CLAIM WITH PREJUDICE
MARK A. GOLDSMITH JUDGE
matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Anthony P. Patti
(Dkt. 16), which recommends granting Defendants' motion
Pamela Harnden filed objections to the R&R (Dkt. 17), to
which Defendants filed a response (Dkt. 18). Because oral
argument will not aid the decisional process, the objections
to the R&R will be decided based on the parties'
briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P.
78(b). For the reasons set forth below, the R&R is
accepted and Defendants' motion to dismiss is granted.
factual and procedural background, along with the standard of
decision and legal principles governing motions to dismiss,
have been adequately set forth by the magistrate judge and
need not be repeated here in full. In brief summary, Harnden
alleges that Defendants - the 31st Circuit Court in St. Clair
County and several judicial officials, including two judges -
participated in the harassment of her family in the form of a
child welfare investigation initiated following an October
2008 allegation that her fifteen year old son hit her adopted
daughter with a metal rod. Her son was arrested and charged,
and her foster children were removed from the home. Harnden
and her husband were investigated for possible child abuse or
neglect. Her son was released in November 2008, and the abuse
or neglect investigation was closed on March 15, 2010. She
now asserts claims of kidnapping, gross negligence, civil
rights violations (construed as a violation of 42 U.S.C.
§ 1983), and civil conspiracy.
2010 and 2014, Harnden apparently contacted both state and
federal law enforcement agencies to attempt to initiate an
investigation. When these requests did not ripen into charges
or other formal proceedings, Harnden turned to the courts.
one of four lawsuits filed by Harnden since 2015 related to
this investigation. On May 16, 2016, this Court adopted the
report and recommendation to dismiss the first of these
lawsuits - brought against her local school district -
finding that there is no private right of action for
kidnapping and that all of her claims were barred by the
applicable statutes of limitation. See Harnden v.
Crosswell-Lexington Community Schools, No. 15-12378,
2016 WL 2731188 (E.D. Mich. May 11, 2016). The second of
these lawsuits - brought against the Michigan Department of
Human and Health Services - was dismissed because the
defendants could not be liable under the doctrine of
sovereign immunity and because, despite Harnden's claims
that the limitations period was tolled due to the criminal
investigations, the claims were barred by the applicable
statutes of limitations. See Harnden v. State of Michigan
Department of Health and Human Services, No. 16-13906,
2017 WL 3224969 (E.D. Mich. July 31, 2017),
aff'd, No. 17-2022 (6th Cir. March 5, 2018). The
third and fourth lawsuits, which include the instant suit,
were filed on the same day, see Harnden v. County of St.
Clair, No. 16-13904; the magistrate judge recommended
dismissing both. Harnden filed twelve objections. For the
reasons that follow, the Court overrules Harnden's
objections and grants Defendants' motion to
STANDARD OF DECISION
Court reviews de novo any portion of the R&R to which a
specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b); Alspaugh v.
McConnell, 643 F.3d 162, 166 (6th Cir. 2011)
(“Only those specific objections to the
magistrate's report made to the district court will be
preserved for appellate review; making some objections but
failing to raise others will not preserve all the objections
a party may have.”). Any arguments made for the first
time in objections to an R&R are deemed waived. Uduko
v. Cozzens, 975 F.Supp.2d 750, 757 (E.D. Mich. 2013).
explained by the magistrate judge, Defendants filed their
answers on December 6, 2016 and January 19, 2017, but did not
file the motion to dismiss until March 20, 2017. Thus, the
motion cannot be considered a motion for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), because
such a motion “must be made before pleading.” But
it can be construed as a motion for judgment on the
pleadings, pursuant to Federal Rule of Civil Procedure 12(c).
“A Rule 12(c) motion for judgment on the pleadings for
failure to state a claim upon which relief can be granted is
nearly identical to that employed under a Rule 12(b)(6)
motion to dismiss.” Kottmyer v. Maas, 436 F.3d
684, 689 (6th Cir. 2006). Accordingly, “[t]he defendant
has the burden of showing that the plaintiff has failed to
state a claim for relief.” Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing
Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir.
1991)), cert. denied, 552 U.S. 1311 (2008). To
survive the motion, the plaintiff must allege sufficient
facts to state a claim to relief above the speculative level,
such that it is “plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
plausibility standard requires courts to accept the alleged
facts as true, even when their truth is doubtful, and to make
all reasonable inferences in favor of the plaintiff.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Twombly, 550 U.S. at 555-556.
has raised twelve objections. For the sake of clarity, the
Court has grouped them by subject and will address them